Sgt. Bowe Bergdahl and Guantanamo Bay: An Extra-Constitutional Hot Mess Gets Messier

Here’s the first question: did President Obama break the law when he released 5 prisoners from Guantanamo Bay in exchange for Sgt. Bowe Bergdahl, the only American soldier held by the Taliban in Afghanistan? Yep, he did. No question about it. The law very specifically required the president to notify Congress 30 days before releasing detainees from the Guantanamo Bay prison. Obama signed the law himself.

He broke the law, and Congress is right to insist that there be consequences for doing so.

But here’s the second question: did Congress have the constitutional authority to pass the law in the first place? Not that it excuses the president, but no, they almost certainly did not. Here’s why.

The president is the commander-in-chief. He has the authority to release any prisoner of war at any time for any reason. This is a military decision, and the president is in charge of the military.

The president also has the power — specifically articulated in Article 2 of the Constitution — “to grant reprieves and pardons for offenses against the United States.” The only exception is for cases of impeachment. The legislative branch does not have the authority to modify either presidential power.

But it’s not quite as straightforward as that, since the detainees in Guantanamo Bay are considered neither POWs nor criminals. Both statuses were denied to them by the extra-constitutional way that this detention center was set up.

If they were POWs, they would have the protection of the Geneva Convention, meaning, among other things, that they could not be tortured. If they were criminals, they would have due process rights, meaning that they could not be held without a charge or interrogated without a lawyer.

Republicans and Democrats alike are guilty of trying to create a category of people who have absolutely no human or civil rights.
Michael Austin
To solve this problem, we broke our own laws.

Twelve years ago, we created a wholly extra-constitutional category called “Guantanamo Detainees,” who had no rights at all because they did not, in any official way, exist. This was a time when we listened to our fear and abandoned the very freedoms and constitutional order that we told ourselves we were fighting for.

The results — torture, permanent detention, and complete lack of judicial oversight — have made us something very close to the nation that America was founded not to be.

And this is the legacy that Congress must invoke to pass a law requiring the president to ask permission to release a prisoner. Such a law depends on the detainees existing outside of either the military or the judicial spheres of influence, since the legislative branch has no power to limit the president’s discretion in either area.

But Republicans and Democrats alike are guilty of trying to create a category of people who have absolutely no human or civil rights. Nobody should be surprised that this extra-constitutional hot mess has become a problem for everyone.

The entire Guantanamo Bay Detention Center is a bad tree. The current scuffle between the president and Congress is its unpalatable fruit.

Instead of having a serious conversation about why we are holding people who are not officially people in a place that is technically not a place, it appears that we are going to have a national debate on whether or not Sgt. Bergdahl deserved to be rescued. This was not an issue two weeks ago.

For years, conservative sources have been calling him a hero and assailing the president for not doing anything to help him. Now that Obama has done something, we learn that Bergdahl was a deserter, a coward, and probably an enemy collaborator.

This, unfortunately, is the kind of debate that suits American public discourse the best. It is shallow, emotional, sensational — and completely irrelevant to the questions that are actually at issue.

Obama did not secure Bergdahl’s release because Bergdahl is good, but because he is an American, and America takes great pride at not leaving soldiers behind. If he is guilty of desertion, or collaboration, he will pay the price — after a trial in which his due process rights are respected. We do not subcontract out military discipline to the Taliban. We rescue anybody that we can.

For that, at least, Obama should be given the credit that he is due.